tv Trump v. Hawaii Oral Argument CSPAN June 27, 2018 12:41am-1:50am EDT
take you seriously. a man looking at a picture of a topless woman is not quick to say look at that fantastic athlete. isn't it wonderful she doesn't have problems with body image. no, he's going to think about sex and not think about her in a respectable way. that's why said andrea merkel would not take off her blouse to prove she does not body and issues. if women want to be respected they have to behave in ways that elicit that. >> today, the supreme court issued a rule and trump versus hawaii on the travel ban. the 5 - 4 decision upholds the policy of banning travel for citizens of iran, libya, north korea, syria, somalia,
venezuela, and yemen. this is just over one hour. >> will hear argument k17965, donald trump president of the united states versus hawaii. >> mr. chief justice may i appease the court. after worldwide multi agency review, the presidents acting homeland security secretary recommend he adopt restrictions on countries that failed to provide the minimum information needed to vet their national. the proclamation adopts this. it omits the vast majority of the world including the vast majority of the muslim world because they met the baseline. and now placed only seven countries that fall below the baseline or had other problems. it exerts diplomatic pressure on those countries to provide
information and protect the coy until they do. the proclamation reflects a foreign policy and national security judgment that falls within the president's power under 1182f and has been successful. that's why the country of chad was recently dropped the list. >> you mentioned 1182f. and the thing about this is that congress was the one responsible for making the loss on immigration. it has been suggested in a brief that 1182f allows the president to suspend entry but only for time long enough for congress to say yes or no. >> your honor, yes, 1182f is a broad and flexible power in a
narrow area. you don't need to explore the outer limits because the proclamation is meant to help implement the ina by making sure we have the minimum level of information needed to see if aliens are admissible. the time limit is inconsistent with the text of the statute and virtually every proclamation issue. >> i'm sorry, i thought congress looked at the situation and created a statutory system that address the concern the president is expressing. congress said you can have visa waivers if you can meet the three criteria that the special committee of the president like that. if you don't, you have to have a very heightened extreme vetting
process. he created that vetting process. more importantly, it took terrorist countries in designated which one supported terrorism and added a layer of review incentive your national from one of those countries or have visited one of those countries in the recent past, you also need the permission of the attorney general and the secretary of state to affirm that you are not a danger to the u.s. what i see the president doing the saying, i'm going to add more to the limits that congress said into what congress said was enough. where does the president get the authority to do more than
congress has already decided is adequate? >> there is a lot packed into your question. the basic answer is that 1182f gives the president authority to impose restrictions in addition to those step forward. >> but on the very grounds that the congress has already looked at? >> the visa waiver program provides a special benefit to our closest allies and some of the safest countries in the world neither the statue program addresses whether we get the minimum level of information needed for the admissibility for individuals coming in from the riskiest countries of the world. 1182 does give the president the authority to supplement that. the whole vetting system is determined by the executive
branch. it's up to the executive branch to maintain it and improve it. here, you have something at the core. the main purpose is to help implement the i may make sure we have the minimum baseline information. the proclamation is talking about. basic information. are they recording to reporting criminal history, to they cooperate with us on a real-time basis. i could give you an example. suppose that jane doe shows up on the border with a valid visa. after the visa was issued pursuant to that processor home country learnshe associated with it terrorist organization but doesn't tell us. when she shows up at the border we can't make an intelligent
decision. that's what the proclamation goes to. making sure we have minimum baseline information needed. the proclamation is different than past but typical in that it speaks to identify harmful conduct that a foreign government is engaging in. it's imposing sanctions to them encourage them to change. here, the harmful conduct is the failure to provide us with the minimum baseline information. >> and you represent that no other country that fails all three of the criteria was excluded from this list? >> what i can represented that the analysis was holistic. it wasn't if you fail one or the other.
>> i can represent that all of the countries listed in the proclamations of the same countries that fell below the baseline with the exception of somalia which the proclamation makes clear. iraq did fall below the baseline subjected to sanctions. the fact that it was meant to impose tailored questions on the authorities looks that -- to try to move those countries across the line into accessibility. >> if you compare this to the carter proclamation this is longer than any proclamation in this particular area.
>> this is a more detailed 1182f proclamation in history. >> the proclamations by reagan and carter were not as broad. >> to complete my answer, this is the most detailed proclamation ever issued in american history. to be sure, this covers more countries than president reagan's cover. >> carter is going to -- >> president carter had an exception must like that with humaan concerns. >> is your argument jurisdictional? >> your honor, yes, i think it is.
that's why i don't think you should address any of the issues. the basic rules is this is a political act and therefore it subject -- >> i thought and sales we decided that this was not jurisdictional, or at least decided the merits -- >> i think the second thing he said was accurate. the court didn't address the review ability issue at all. we don't think it's presidenti presidential. >> so he would've been required to address. >> one way we could understand it is it doesn't go to article three jurisdiction we would urge the court to accept it. i think it's correct. even if you don't think it's correct we think the
proclamation satisfies the merits because of falls within the power within 1182f. >> general to the constitutional claims, in your principal response to the establishment clause is to cite mandel and say once the government comes forward and national security is an important recent can come forward with, the game is over. i just want to press on that. first, you started off by talking a lot about the prospect of this proclamation. that argument would receiv apply irrespective of what process was used. you would have used the same
argument to the first executive order in this case, or which you not? >> we would've made in mandel argument but it's far stronger. >> this really is you state the reason. >> i think that is right but in addition to the you have the world by process that we had that resulted in a cabinet level organization that would be neutral to every country in the world that includes almost all of the muslim majority world have that baseline. ink whether you apply mandel or mccreary, that makes the constitutional case overwhelmingly strong.
>> there are ways to distinguish mandel in this case. the terms of thinking about what mandel really forecloses. >> the only two cases in the area it's hard to understand the full contours of it. >> i want to just -- less in some future time a president gets selected who is a vehement anti-semite and there's all kinds of garments about choose and provokes a lot of resentments and hatred. in the course of that as the staff are cabinet members to issue recommendations they have
the eyes and cross out the tees. what emerges in this anitis is that no one shall enter from israel. to say mandel puts an end to judicial review for that set of facts. >> no i don'think he puts an end to it but i think in that context will be the starting point of that analysis. if his cabinet and this is a tough epic hypothetical, if the cabinet were to come and say, mr. president there's a national security risk there than i think the president would be allowed to follow that advice even if in
his private heart of hearts -- i think it would be difficult for that to satisfy. i whitney to know what the rationale is given that they happen to be the closest allies. it's not clear that you could satisfy his standard. must was based on a cabinet level recommendation based on national security. >> this is an out-of-the-box type of president in my hypothetical. >> we don't have those your honor. >> he thinks they're good, diplomatic reasons and knows what the future holds. there might be good reasons to put pressure on israel were to say we want israel to vote a certain way and this is a way to better our diplomatic hand.
he knows what his heart of hearts is. the question is, the question is, what are reasonable observers given this context in which this hypothetical president is making anti-semitic comments. >> it's a tough hypothetical but that w thisively easy case. were willing to assume that you consider all the statements and that even though we think it's wrong you apply some jurisprudence. were confidence than a matter what standard you apply this is constitutional. since we don't have the extreme hypothetical we have a multiagency worldwide view and a cabinet level recommendations that applied mutual baseline.
this was done by the agencies to every country in the world. >> when you have that extreme hypothetical would that preventive free exercise? >> definitely free exercise clause just as a free-speech type claim in the mandel case. theree peoe who could potentially succeed on that. >> and those who could bring that claim would relatives. >> i think a university could bring a free-speech type claim under mandel met quite not an establishment? >> the reason why they haven't pursued those is because they couldn't support the nationwide injunction they're asking for. i think the proclamation doesn't
actually apply. it only applies to aliens abroad who have no constitutional -- >> the claim is that the proclamation is in place because of the particular religion. i thought the establishment clause is that we cannot be anything but neutral with respect to religion. >> that is true, your honor. as the valley forge decision makes clear not everybody is that negative message injury. otherwise the plaintiffs would have to challenge the land transfer from the government to the christian college. >> but they're saying that is negative religious attitude and that is stopping them from doing things they would otherwise be able to do to associate with scholars from these countries,
to bring in students, to have family during the which is the purpose of the. >> that's where they might have free exercise or free-speech claims. but that cannot support a nationwide injunction. i don't think that gives them an establishment clause when the establishment doesn't apply to them. . . >> that he can hire or fire anyone one source put in place
whatever policy he wants. if we take the hypothetical president who basically says to his review committee, i want to keep outside use ago. find a way. to keep the jewish out. in that situation why would the actions of this committee not be subject to great fission and choose thorough review given that they are responsible to the executive
what the outcome of their deliberations must be. >> i have two responses. the first is the president's cabinet just like all of us here is duty-bound to protect the constitution. i would expect that as any cabinet member were given that order, that cabinet member would refuse to comply or resign in the face of a plainly unconstitutional order. i think that would be the initial check. second if you have an extreme scenario where that broke down , th if tho make that statement to keep out of particular race or religion no matter what, that would undermine the facial legitimacy of the action even under the mandel standard. here you don't have anything like that but the cabinet doing his job through the agencies with a assam to construct in the flight is neutral standard to every country in the world every muslim country they concluded
the vast majority of the world and the muslim world were just fine but there were problems with the small number of countries so to impose recommended pressure. >> but the problem is i don't see where that material was reviewed by the judges below the ninth or the fourth circuit judges. i felt the government kept confidential and refused to share with the litigants or the courts exactly what was done, how, the evaluation, and how it applied to those countries in the world. i understand some of that confidentiality, but if that backdrop is the way that justice kagan described anti- somatic background, don't you
think once you get through the mandel preliminary stage that he and independent arbiter to look at that to ensure the process is what claimed it was? >> a couple of responses to that. first i think the proclamation is very transparent and lays out in great detail the process and substance on which it is based and under the duty of good faith that one branch of government equals to another a very strong presumption that is what is set is the truth. >> i want to make sure i have it right that at the time the president said we don't want muslims coming into this country but that would undermine the proclamation. is thatt right?
so honestly the difference seems to be is everything the president said that? campaign statements are made by a private citizen to receive advice of the cabinet that marks a fundamental transformation from a private to the embodiment of the executive branch will make the statements is elected on day number two makes acts consistent with those statements?ha
>> whatever he said is irrelevant i would say two things. that is the point i was about to turn to. i would say yes that would margate information but it didn't matter because here the statement that they cipally rely o don't tually address the meaning of the proamation itself. this is not a muslim band if it were it would be the most ineffectivelyhe and one could a mansion -- imagine it excludes the bath majority of the world but also three countries including iraq chad and sudan. so it is what it purports to be and confirmed that it is. with the worldwide review with the true criteria all across the world under that neutral criteria most of the world but aas small part failed to give
that minimum baseline information and criminal history. >> i am almost 80 and i think i know the arguments. there is one question i am left with. it starts with the assumption. i noticed that the carter and reagan order both had case-by-case exceptions. and this had case-by-case exceptions. to make the case-by-case waivers could be appropriate with individual circumstances. and then they have to be no
terrorists and they cannot have undue hardship the only way it appears in the law is exe hardship. for them may have the list of previously established, business reason studying or other long-term activity, a family member a disease or something they need treatmentt for, previously then employees one --dash then employees but to focus on the class of individuals. so there may be a few that fall within that class? >> a small number of people like that is what i am asking about.
so if they fall within that class x and with that normal process. >> first in terms of the numbers are the reason they are excluded one of the principal points of the proclamation is to have diplomatic pressure on government to get them to chang change. >> they should be looted? mac not if they meet the criteria. >> okay. that is what i thought you would say for now i get to ask my question. just want to make sure we are on the same w wavelength. [laughter] so here's the problem. it seems to me a significant number of such people the academic community, $46 at harvard, families that say we
try to edic treatment nobody told us they only admitted to now there is no guidance so now the most there are is 100 so there is my question. if you had done the same thing as the reagan people and the carter people that you got the same thing. but if this is just window dressing and they never apply and you have something new and different going well beyond what reagan did so i want to know how do i find out or how do i find out when there isn't that information in the brief? do we have another hearing? the reason that back? he say look, the government of course thinks this that the other side there is only two people you will notice there
are people in yemen decent people do you seey point? >> the reply brief has the most current number and i believe page 17 footnote it is over 400 i cannot remember. >> out of 115 million is it publicize all they know they have to go to the office to say i understand? >> i have two responses to that. i don't know how publicized it is that i suspect people understand how to get it in my second response is that frankly in terms of the legality i think the waiver is notty necessary. >> not necessary? >> which is why that's a good thing why does proclamation have them but it doesn't
require it be maxie want me to consider the lawfulness of thisou order on the assumption that there is no waiver. not what president reagan did, not what president carter did and as you go through every action congress took waiver waiver waiver possibility case-by-case. >> no. i don't what you to consider the proclamation on the hypothetical situation of what it isn't but i do think the proclamation as written and applied puts the president's authorityde under 1182(f). >> we will forward your rebuttaler time. >> mr. chief justice me it please the court executive order unlawfulor the reasons it employed with the policy choice choices, defies the bar on nationality
discrimination something that you never heard my friend talk about and to violate the first amendment. congress is already specified a three-part solution to the same problem the orderre addresses the alien seeking entry from countries that don't cooperate with united states including state sponsors of terrorism and countries that provide inaccurate information first aliens have to go through the individualized vetting process with the burden placed on them than second when congress becomes b where somewhere failing to satisfy the criteria that you heard about congress rejected them and restead they use credits when countries cooperate they get extra credit for admission legislation for the international events fail and third congress is aware circumstances could change on the grounds are required the reporting so it could change the law.
>> so the intelligence agencies go to the president to say we have 100% all -- solid information 20 nationalists from syria will enter the united states with chemical and biological weapons they could kill tens thousands of american. in that situation could the president then the entry of syrian nationals on that one day? >> he could for two reasons. the nationality discrimination ban whether or not this comports with congress' policy judgment it wouldn't be nationality discrimination when you have emergen fast-moving situation like yourst example. >> so what if it is one week or one month from now? but that is the intelligence information but so it has to be immediate?
>> i think this court dealt with at that said the president will get the path absolutely what he says the emergency is little the can you have a legislative impediment removed? here we are 460 days on he never even introduce legislation so we are so far from the hypothetical imagine if you can congress is unable to act when the president asked for legislation. [laughter] someone introduces a bill to say authorized first of all the president may have called about sharing the intelligence broad legal essay a bill introduces authorize the president and his ability to say block the president to make absolutely i understand the president has residual authority to keep the countries they tco congress has thought about this exact proble problem. there is only one problem he has identified which is countries not cooperating
talking about people coming in like you're hypothetical and with respect to that congress has said here is how we deal with it. sthe individualized vetting system pushing all the burden on the person coming in biometric id under the statute , and in person interview there is any risk if they are from a country and to the exactly what they are trying to propose a flat nationality band. w this is that with congress is judgment. and asked 1182(f) why doesn't this fall squarely within that language? >> for the contextual reason
that justice breyer is talking about it is not perpetual that justice ginsburg is talking about but it is a much bigger process. >> maybe you can talk about the text.al it is not a class. doesn't he say whenever the president fine the entry of any class of alien, put classified although i don't see why people who are nationals of the particular country don't institute a class but what about any aliens? >> we think because of the power is so broad and and how do we harmonize that text with the best? i don't thank you heard the answer is a secondary beer
that the president power he could and the family preference system and to stop chain migration and could countermand any of those provisions to turn into the line item veto. forn that reason i think that the court has dealt with in the tobacco case. >> does this proclamation report to establish a new permanent immigration policy for the united states? >> absolutely your honor. this is a a perpetual policy and it does exactly what congress intended, and it countermand congress judgment 2001 through 2015 and to say instead of the bands we will bring in foreign policy considerations humanitarian, all of that to
gather say instead we will have a much more fine approach with vetting and credit for those countries. >> what iserpetual? there is nothing in the order that i sent. >> and thought had to be re-examined 180 days? no. a report has to come in and nothing happens in that if that is the case there is a reassessment? and the president has continuing discretion. >> this argument would not be there about the assessment and half of the orders including cuba order that says the sun set once the crisis and there is nothing like that here it is just like the reporting requirement too congress they are not required to do anything their statues like that all the time. that is why unlike any other executive order if you look at
all three executive orders, none of them but this. that they deem necessary but that is not what this says that a perpetual problem said the president is convinced in six months he will have a safe world macbook air the president identify something that is a perennial problem going back 10000 years when the soviet union was around we don't have countries that cooperate with us and the solution has always been fromwi congress not to have the flat band but instead the fine-grained vetting system to balance the consideration.
>> what do the military advisors tell them in their judgment he ought to order on -- airstrikes again. and the president, does that mean he can't because that is discrimination against the majority muslim country? >> absolutely not at 1152 does not have discrimination. >> 1182(f) you say there is no problem under that provision? >> i don't think there is any immigration issue of your hypothetical. >> any type of targeted action to an impasse on the muslim population but under the
establishment on because he said in that anti-muslim mac not at all no president has run afoul because here the president and his advisors directly tied this policy to those statements on page 78 think is the illustration. certainly i do want to get to that claim but first i want to make very clear the consequences of their position for the ina that the president can take a wrecking ball to the statute to countermand congress' judgment. >> on this question before we leave it, so far with the assumptionhat we can reach the merits but the government makes the argument for example that aliens are a country
after bringing their claims personally and and asked the question those who were not present is united states is bringing this challenge and then that 10-year-old daughter in yemen is trying to come here if you don't suspect aliens in the country what about those that are not? it seems the argument would not succeed. >> they don't because they you
have better here the bolts are directly impacted you guys but that is how he justice project, at beckley debt situation god given the resident a power no president has signed a positive information have -- policy judgment with zero example. that congress stepped into the face to solve the exact problem the president can say no. i want a different solution if you do that it isn't just family preference but all sorts of small things like
that here is a question. there needs to be some limits toev prevent the from doing something completely contrary from doing something completely contrary that the presidenten cannot so what are you saying this is a precautionary would have to.so the presidentt can support but not the plant in the brown and will --dash and in and in laws that enter the direct
intervention they say it is not on page 19 so the first three things can they coexist? congress prescribed a reticulated c theme and third, is is there any other indication that congress considered the issue in a different direction? with respect to all of those, it satisfies all three and the countries that are not cooperating we have ocean and it makes the little state sponsorsrs into some of waiver
program is all about those that give zero information to the united states and say we will give you forget about the waiver program. >> can you imagine any situation where the threat of infiltration of the united states by terrorists were though severe with the particular country that the other measures could be deemed by a president to be inadequatede. >> i am not imagining any such relations the president would have a robust authority to make your argument is that courts have a duty to review whether or not there is an agency? matt you do have a wide reference justice if there is
any sort of emergency vet but then to consider those but they do not cooperate when it comes to vetting. but then there may be more particular problem with situations developing on the ground in but that is in a particular context and it seemed that so for example is you have that processing software, absolutely the president has the power to do
that. >> what about the change of administration where the procedures will not be taken seriously congress not. >> that it anticipated the state sponsor of terrorism that congress said we will not have a nationality ban and said to have individualized ready but i cannot imagine the emergencies i would caution or not to make a decision but this is far from but the text of 1152 was flatly violated
with those issuancef the staff it is not a small part but a large part because immigrant fees the -- it is for those who want to become part of the long-term policy executive order flatly contradicts that. if you accept that interpretation on the entry side has but it is based on the campaign that with the
1152 discrimination testing with backpack you could not imagine a clear text and then but i just want to make absolutely clear that you don't need to do any of that corporate of 1152 to knock out 39% of 9% of the most important part of the executive order. with respectct to that test of the court has had a reasonable objective observer you my friend is right to campaign statement in general of a private citizen the only thing that is here he himself had
rekindled exactly that. look atha page 70 you have a very good example of that after the executive order was promulgated the president tweeted to me in time of my video and then asked what does thisis mean? he has spoken by one -- about this in the proclamation. >> the question is this the inability to enter one of the proclamation applies forever? mac no. the president and then disavow all those that is exactly what the court said and then to be promulgated depending on the circumstances.
>> and then to disavow the statements. can you discrimination argument is not applicable. >> that is what i told the ninth circuit in may and the president cannot do that. that is a reasonable objective observer in reading the proclamation without taking into account statement thinking this was a muslim band? i think there are 50 predominately muslim countries they are on the population predominately on countries make up 8% look at we would
calling it blatant religious discrimination. >> it has been a longha time use outline and test even to strike down the best statute le alone something with. the international application what do we do about that? >> the very fact that immigration look the other way at the heart of the first amendment is about immigration restriction and the protest of key george proposes that we were very clear to say talking about denigration of religion all mac you mean that in all
national security interest at stake so how do you do that analysis you want us to do without some sense evaluating the adequacy of the national security interests which for the mo part we have said courts are not equipped to do. >> we are not asking to second-guess the national security judgment with the establishment clause but just what a reasonable objective observer would do with the ordinary test is there an official purpose to disparage a religion here there is everything that the president has said in the order itself. >> still something i am thinking about that the statutes that you point but the statute that you .2, one of the one obviously there are objections to what you are sayingut the one thing you
have to have it with an official tree designated by the secretary of state as a state sponsor of terror. so we do have that so there isn't much probably beyond that now take the argument if my question that i could not find in the brief, is it true i take what they say that isn't so? they don't publicize that or put forth the guidance and people don't know they can qualify. and if it turns out something important to the lawfulness of the order, what do we do? >> this process and then to
come to the united states to save her life but then one night aa waiver justice three --ye justice breyer interviewed how the denominator over the publication of the process in the data that we do have a make this is a question of remedy. we have a ride of this cosmic conjunction not related that is a new development work with anybody anywhere in the world.y what do we do about that? greg obviously has been and in
you can have an extra five minutes. >> okay. [laughter] you don't have to make it there any other question and i thank you counsel five minuteses rebuttal? mac mr. chief justice me please the court i really have just a few key points unless you have additional questions. justice breyer respond in detail about the way for the department does publish but if they are in a principled and you never get to thehe
students from thery with being a whole bunch we don't know what is going on. but then i just say that i don't know. of course it is to search but frankly that brings me to the second point that i hope to try to make that the individual vetting process defense upon us having that minimum baseline information needed to determine in that vetting process whether the person is admissible so initial that our border with a
visa at the home government know something that we don't know we cannotet intelligently admissibility determination. third i like to address the 1152 a1 a point about nationality. >> one i for one i am in window dressing not. so what took place to ensure my dashing sure how to that it is a real waiver process? to make the consular offices obvious lung -- already applied to every application and they are doing that. there are 430 weavers issue i
have not looked into every case. but what about 1182? that sucks universal people but a national security judgment 1152 is one of the rules that govern how we distribute visa among the group that is eligible. it isn't just nationality but also applies to things place of residence. ncyo have the inverse of eligible people that govern how you distribute that. but let's assume if you disagree with me that means we
implement in a slightly different way. have to issue immigrant visa two people are not allowed to enter but we don't have to allow anyone to enter or issue non- immigrant b-12 so there is something wrong with that issue. my final point has to do with my brothers recognition if he were to say tomorrow sorry then all of this would go away. and with the muslim band to make it t crystal clear muslims are great americans in many countries who love this country as one of the great countries of the world.